6th Circuit Court ‘wins’ lottery to hear lawsuits against Biden’s vaccine rule

Under federal law, when multiple lawsuits involving “one or more common questions of fact” are filed in separate courts, the petitions are consolidated and heard by one court chosen at random. The procedure is often used to handle product liability and antitrust cases, when thousands of lawsuits may be consolidated and heard by a single court.

The 6th Circuit Court of Appeals has won the lottery to hear legal challenges to the Biden administration’s vaccine rule that affects some 84 million workers.

The Biden administration rule was formally issued on Nov. 5 by the Occupational Safety and Health Administration. Lawsuits challenging the rule came in quick succession. Within 10 days, 34 lawsuits were filed, covering all 12 regional circuit courts and giving each of those courts one entry into the lottery.

A report by NPR claims the 6th Circuit Court of Appeals, based in Cincinnati, Ohio, is known to lean conservative, with most of its judges appointed by Republican presidents. Six were appointed by President Donald Trump and five were appointed by President George W. Bush, while a total of five were appointed by Democratic Presidents Bill Clinton and Barack Obama.

It will now be up to the 6th Circuit to decide whether to lift the stay issued by the 5th Circuit. A three-judge panel temporarily blocked the OSHA rule one day after it took effect and reaffirmed that decision last Friday, calling the rule “a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers).”

While a majority of the lawsuits seek to overturn the OSHA rule, several labor unions went the other way. They sued saying the rule does not go far enough to protect workers from COVID-19. The rule does not apply to employers with fewer than 100 workers.

The union lawsuits were mostly filed in courts that either have a majority of judges appointed by Democratic presidents or are evenly split.

But an article in Politico speculates that that the legal challenges are likely to end up in front of the Supreme Court, where a conservative majority seems ripe to limit the federal government’s ability to police workplaces in emergencies more broadly.

Some of the arguments made in the cases could “have serious implications on the constitutionality” of other OSHA rules and regulations, said Benjamin Noren, associate chair of the Labor and Employment group at the law firm Davidoff Hutcher & Citron.